Perez v. Lewis

84 F. App'x 926

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 22, 2003
• Docket: No. 02-55795; D.C. No. CV-00-13212-CAS
• Status: Published

Opinion

MEMORANDUM

**

A pre-trial identification procedure is impermissibly suggestive only if it gives rise to “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); see also Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). An identification procedure does not offend due process if, under the totality of the circumstances, it is reliable. See id. at 199-200.

The eyewitness who identified defendant saw him up close in both robberies, recognized him at the second robbery as the man who committed the first and was highly certain in his testimony. Accordingly, the state appellate court’s decision that the identification was admissible was not contrary to or an unreasonable application of clearly established Supreme Court law. See 28 U.S.C. § 2254(d)(1).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.